Maj. Nidal Hasan: A Murderer or Martyr ?

I'm Michel Martin, and this is TELL ME MORE from NPR News. Later in the program today, we'll talk about immigration, but not in the way you might expect. Most often, we seem to hear about immigrants who are desperate to stay in the U.S. Later, we'll hear from a woman who said life was not what she'd hoped for here, so she packed up and went back to Trinidad. We'll hear from her in just a few minutes. But we are going to start the program today with a visit to the Barbershop.

That's where the guys talk about what's in the news and what's on their minds. Sitting in the chairs for a shape-up this week are writer and culture critic Jimi Izrael, with us from Chicago. In Louisville, Kentucky, the Muslim guy Arsalan Iftikhar, senior editor of The Islamic Monthly. Neil Minkoff is a healthcare consultant and contributor to National Review, with us from Boston. And here in Washington, D.C., Paul Butler, law professor at Georgetown University. Take it away, Jimi.

JIMI IZRAEL: Thanks, Michel. Hey, fellas. Welcome to the shop. How we doing?

MARTIN: And how about best wishes for the end of Ramadan, for Eid, Jimi. Hello.

IZRAEL: As I...

MARTIN: Eid Mubarak, Arsalan...

IFTIKHAR: Thank you...

MARTIN: ...For the rest of us.

IFTIKHAR: I get to have my morning caffeine now.

MARTIN: Exactly.

IZRAEL: Yeah, what she said. OK. Let's get started. Another big week, another big court case. Nidal Hasan is being tried in a military court for a 2009 shooting rampage, and he's front-and-center representing himself, Michel.

MARTIN: And not only that, he has admitted everything at this point. He has now admitted that he killed 13 people and wounded more than 30 others - a number of them quite seriously. He has a team of legal advisers who argued that Hasan was basically aiding the prosecution. And then they asked to be taken off the case or to take over, but the judge ordered them to continue as advisers. I mean, that was the news this week. He's essentially asking to be put to death.

IZRAEL: Thanks for that, Michel. You know, he kind of joins a proud tradition of nut-jobs like the Colin Ferguson, the Long Island Railroad mass murderer who killed six and wounded 19 - not 90 - 19 others and then tried to convince a judge he wasn't even there.

He even wanted to question himself. You know Ferguson was a business major, not a lawyer or Mensa candidate, just like Hasan. Paul Butler. Professor Paul. Despite pleading guilty, he called himself the shooter in opening statements. What's up with that?

BUTLER: You know, if I were a defense attorney, I would refuse to represent Hasan, even if that meant I got in trouble with the judge. If he wants to get the death penalty, he has the right to make that choice. The judge wants the process to look fair, but capital punishment is just fundamentally flawed.

It kind of reminds me of these situations in which people on death row get life-threatening illnesses while they're awaiting execution. And then the prisons go through all these measures to keep them alive just so they can be killed by the government. What one Supreme Court Justice says we can't tinker anymore with the machinery of death. So Hasan is a murderer, not a martyr. But he's exposing a big flaw in our criminal justice system.

MARTIN: So your argument that he is so fundamentally mentally compromised that, what? Is that your argument?

BUTLER: No. I think he's admitting that he did it and he's saying go ahead, United States, kill me. And so...

MARTIN: And so you're saying they should accommodate him?

BUTLER: Well, I'm saying he has the right to make that decision. It's not a decision that I would advise a client, but it's his choice, at the end of the day.

IZRAEL: Well, you know his attorneys said they find it morally - quote-unquote, morally repugnant to represent him since they say he wants the death penalty. Do you, Andre, do you think they should be forced to serve?

BUTLER: You know, the judge, again, is trying to force them just to make the system look fair. But, no, I don't think that anybody, any lawyer, should be forced to represent someone who she doesn't want to represent.

IZRAEL: Doctor Neil, critics say people around Hasan didn't speak up about his strange behavior because of a sensitivity to Muslims beliefs. What do you think?

MINKOFF: Well, I mean, that would involve getting very deep into, you know, military HR and policies around that. I mean, I certainly - it certainly sounds from some of the things that have come out, as if people were concerned about being seen as equating being religious with being violent, which is certainly a distinction we should all make.

I mean, the big open question I have and, you know, maybe some people here can enlighten me, is, you know, there's been the argument whether or not this was murder, workplace violence, or terrorism. Was it beyond that? Was it treason to have a member of the armed forces kill other members of the armed forces in order to change the way a war is being fought?

MARTIN: Yeah. Well, what about that, Arsalan? I mean, Arsalan, you know, I'm glad you're here to talk about this because this is one of the controversies here. The Army decided not to classify this as an act of terrorism, calling it workplace violence. And some of the people who were wounded are particularly angry about that. And I wanted to ask you how you feel about this? I mean.

IFTIKHAR: Well, I mean, I think that in this case, it's quite clear that what Nidal Hasan did at Fort Hood was an act of terrorism. You know, during his statements he said that he was doing it based on a political ideology. Investigators found that he had contact with a radical AQAP Al-Quaeda in the Arabian Peninsula leader Anwar al-Awlaki, - that he did this, you know, because of what was going on abroad. Now, I think that, in terms of whether or not he felt that this was going to have any change in American policy in those wars, I think could be argued. I think, in terms of what's going on in the case right now, in terms of him representing himself, we all know the famous adage that a man who represents himself in court has a fool for a client.

And in this case, you know, representing yourself or pro se, which is the legal term, you know, really is a challenge to his defense attorneys because, essentially, you know, like you said, Jimi, he said during his opening statement, I am the shooter. And what's interesting to note in military capital cases, there is no guilty plea. You know, so you either say I didn't do it or I did it with a reason. And so it's going to be interesting to see how Nidal Hasan justifies what he did, and I do agree that he is trying to get himself a death sentence. And I think that outside of the legal, ethical dilemma, I also think that it poses a greater sociopolitical risk also, because we don't want Nidal Hasan to get the, quote-unquote, martyr that he seeks, like Paul said. And so I think that it's really important, whether or not you agree with the death penalty or not, what sort of political message this sends to the greater public as well.

MARTIN: So what are you saying should happen here?

IFTIKHAR: Well, I think it's tough, you know. It's like hiring a basketball coach for your team and the team is throwing the game, and you really have no power to change what's going on. I think the judge has to allow - ultimately, I think lawyers should be allowed to recuse themselves from cases where they know that their client is going to lose. You know, our job as lawyers is to zealously advocate for our clients and if our clients are representing ourselves and we're sitting, you know, essentially with our hands tied behind our back while our client puts a noose around his neck, you know, I think that makes for good cause to remove yourself.

MARTIN: Yeah, I wanted to ask Neil this question, 'cause Neil you're trained as a doctor. I know that you're not a psychiatrist, you're not currently practicing, but one of the questions I have is, I know a lot of people are saying that attention was not drawn to his increasingly bizarre behavior. And a lot of people think it's because the Army was being politically correct.

I wonder if it's in part because he was so expensively trained. I mean, he had an expensive training, he was in a specialty that they particularly needed since there's a tremendous pressure to offer mental health support to service members coming back. And I wonder, do you think that that could have been part of the reason that he wasn't dealt with? Is that they didn't want to lose somebody that they spent hundreds of thousands of dollars training even though he seemed to be increasingly unfit?

MINKOFF: Well, I mean, that could certainly weigh into it. And I'm not going to say that that's not a reason. I would say that there does seem to be, in all walks of medicine, a great deal of latitude for odd behavior for those who specialize in behavioral health. And psychiatrists, in general, are often seen as the odd ducks of medicine. And so I wonder whether or not - it's easy to talk about where the behavior ended up. What I haven't been clear about is level of eccentricity in the behavior at the baseline to know just how far this had really gone based on where he had started.

MARTIN: Well, so, it's interesting. Well, obviously this is - poses some very difficult dilemmas, you know, for all involved. And I think, you know, once again, our hearts have to go out to the people who were victimized here. Particularly the people - I mean, obviously the loss of life, but people who continue to live with grievous injuries and who also feel they are very much hard done by this process, and are not getting the sense of closure that I think they were hoping for. Well, can we move on to another topic, Jimi? I understand that you wanted to talk about - well, you tell us.

IZRAEL: Well, yeah, let's move on from the court house to the big house, where it goes down. Lawmakers are saying that people spent a little too much time in prison for some crimes. Oh my God, clutch the pearls. But apparently, there's some reform on the horizon, right Michel?

MARTIN: Well, congressional leaders on both sides are working on legislation to give judges more power to impose lower sentences for lesser crimes, particularly nonviolent crimes. And at the top, they have the support of U.S. Attorney General Eric Holder. He's reportedly had lawyers working on his own proposal, and this is what he said last spring about the old ways of thinking about this.

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US ATTORNEY GENERAL ERIC HOLDER: The war on drugs is now 30, 40 years old. There've been a lot of unintended consequences. There's been kind of a decimation of certain communities, in particular communities of color.

MARTIN: We need to take a short break in a minute. So Paul, why don't we go to first you on this? As a former federal prosecutor, how do you react to this?

BUTLER: Love it. It's why Eric Holder is my favorite person in the Obama administration. Other than Michelle of course. So it's mainly symbolic, 'cause 90 percent of inmates are in state prisons and Holder doesn't have any control over those. But he can tell federal prosecutors to chill out with all those drug cases.

When I was a federal prosecutor, we were bringing those cases and judges would hate them. They're not federal cases. But usually, the man or woman who's the attorney general wants to show how tough on crime they are by announcing all these harsh new laws or giving more money to the police to lock people up. Eric Holder is actually saying prosecutors should give up some of their power and judges should stop putting so many people, especially black people, in jail. That's huge.

MARTIN: Jimi, you want to weigh in on this before we need to take a short break. What do you think?

IZRAEL: I think the time should fit the crime. And be uniformly applied. But also the thing is - too long is too - it's too subjective for me. I'm kind of a crime and punishment kind of guy. And if you do it, and you know what the time is going in, then, you know, you took your destiny - well, of course, you took your destiny into your own hands. So there you go. You got to - you know, you sleep with dogs, you wake up with fleas.

BUTLER: Even if the result is one-in-three young black men in jail, Jimi?

IZRAEL: You know what, you that going in though. I mean, you get in the drug game, you know that the courts are stacked against you. So who's the fool, the court or you?

MARTIN: I just want...

IFTIKHAR: ...Jimi...

MARTIN: ...To know how much choices - go ahead, Arsalan.

IFTIKHAR: ...Well, you know, Jimi, you talked about, you know, the sentences being, quote unquote, uniformly applied but it hasn't been uniformly applied. You know, we've had reports from the U.S. Sentencing Commission, which shows that there are 20 percent higher sentences for black men than white men. So, you know, obviously, these mandatory minimums are not being uniformly applied. They're disparately impacting young black man as opposed to young white men.

MINKOFF: And our drug laws are based on...

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MINKOFF: ...On myth.

MARTIN: Go ahead, Neil.

MINKOFF: Our drug laws are based on myths. Our drug laws are draconian and make very little sense from a socioeconomic point of view, from a medical point of view, from an addiction point of view. That, you know, I - look two things. One, I wholeheartedly applaud this effort and the fact that it's getting Durbin and Leahy on the Democratic side of the aisle and Rand Paul and Mike Lee from the Republican side of the aisle just shows how unbelievably widespread it is - the idea that we're doing this poorly. But not only should we be affecting the sentencing, I believe that the drug laws need to be loosened dramatically. So that we're not even getting to sentencing...

MARTIN: ...Neil, we have to take a short break. We're coming back to you. Don't worry.